Citation NR: 9722266
Decision Date: 06/25/97 Archive Date: 06/30/97
DOCKET NO. 96-10 518 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Providence, Rhode Island
THE ISSUE
Entitlement to service connection for defective hearing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. P. Reardon, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1942 to
December 1945. This matter comes before the Board of
Veterans Appeals (Board) on appeal from a January 1996 rating
decision by the Providence, Rhode Island RO.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a hearing loss was incurred during
active military service as a result of exposure to gunfire.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
entitlement to service connection for defective hearing is
well grounded.
FINDINGS OF FACT
1. The claim for entitlement to service connection for
defective hearing is not accompanied by any medical evidence
to support that allegation.
2. The claim for entitlement to service connection for
defective hearing is not plausible.
CONCLUSION OF LAW
The veteran's claim of service connection for defective
hearing is not well grounded. 38 U.S.C.A. §§ 1110, 1112,
5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.385 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
An October 1942 enlistment examination was negative for any
complaints or findings of defective hearing. The examination
report indicates that a hearing test was conducted and the
veteran received a 15/15 evaluation for both ears.
A January 1943 service medical record indicates that the
veteran was examined and found to be physically qualified for
transfer.
A December 1945 discharge examination indicates that the
“whispered voice” test was conducted and the veteran received
a 15/15 evaluation for both ears. The examination report
contains no audiometric test results and records no
complaints of hearing difficulty or abnormalities of the
ears. The veteran was found to be physically qualified for
separation.
Post-service medical evidence shows that the veteran was seen
by a private physician at Harvard Community Health in
December 1992 for complaints of decreased hearing in his
right ear “for the last couple of months.” It was noted that
the veteran indicated that he was exposed to gun fire while
in the military. Assessment was hearing loss in the right
ear. The veteran was again seen in August 1993 and reported
that “for the last six months he has been aware of a hearing
loss in the right ear.” The veteran also indicated that “he
[was] unsure as to how long [the hearing loss] has been
present.” He reported exposure to “noise trauma” while in
the military but stated that he “was not aware that this
caused any long term problem.” Assessment was asymmetric
sensorineural hearing loss.
In addition, an October 1995 VA outpatient treatment report
notes that the veteran was seen with complaints of hearing
problems. Impression was bilateral deafness, right greater
than left. The examiner recommended a hearing aid for the
veteran.
A January 1996 Report of Contact notes that the veteran was
contacted regarding his treatment for defective hearing since
the time of discharge. The veteran indicated that the
records submitted from Harvard Community Health and the VA
outpatient treatment reports are the only records of
treatment for his defective hearing. He further indicated
that he was not treated prior to the dates listed on these
records.
In a September 1996 personal hearing, the veteran indicated
that he sustained a concussion during enemy attack and
temporarily lost his hearing and vision. He further
indicated that he “went to sick bay” and “stayed there
overnight and got [his] hearing back.” He stated that after
the incident, his hearing had returned to normal and “seemed
fine.” He testified that he “never was really aware that
[he] couldn’t hear well until one day, it must have been 10
years ago, at least,” while on the phone. In addition, he
testified that he became aware of a hearing loss “[m]aybe 12,
15 years” ago.
Analysis
A claimant seeking benefits under a law administered by the
Secretary of the VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. The
Secretary has the duty to assist a claimant in developing
facts pertinent to the claim if the claim is determined to be
well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold
question to be answered is whether the veteran has presented
a well-grounded claim; that is, a claim which is plausible.
If he has not presented a well-grounded claim, his appeal
must fail, and there is no duty to assist him further in the
development of his claim as any such additional development
would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
As explained below, the Board finds that the appellant’s
claim for service connection for defective hearing is not
well grounded.
To sustain a well-grounded claim, the claimant must provide
evidence demonstrating that the claim is plausible; mere
allegation is insufficient. Tirpak v. Derwinski, 2
Vet.App. 609 (1992). The determination of whether a claim is
well grounded is legal in nature. King v. Brown, 5
Vet.App. 19 (1993). A well-grounded claim is a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of 38 U.S.C.A.
§ 5107(a). Murphy, supra. To be well grounded, a claim must
be accompanied by supportive evidence, and such evidence must
justify a belief by a fair and impartial individual that the
claim is plausible. Where the determinative issue involves
either medical etiology or a medical diagnosis, competent
medical evidence is required to fulfill the well-grounded
claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown,
7 Vet.App. 359 (1995).
In order for a claim for service connection to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence) and of a nexus between the in-service injury or
disease and the current disability (medical evidence). The
nexus requirement may be satisfied by a presumption that
certain diseases manifesting themselves within certain
prescribed periods are related to service. Caluza v. Brown,
7 Vet.App. 498 (1995). In this regard, it should be pointed
out that hearing acuity is not considered impaired for
purposes of an award of service connection unless audiometric
test results, including speech recognition scores, have
reached a certain level. The provisions of 38 C.F.R. § 3.385
(1996) provide that:
For the purposes of applying the laws
administered by VA, impaired hearing will
be considered to be a disability when the auditory
threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or
greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz are 26 decibels or greater;
or when speech recognition scores using the
Maryland CNC Test are less than 94 percent.
No evidence has been presented showing defective hearing in
service. Post-service records reflect the presence of
defective hearing many years after service, but they do not
medically link it to service. While the veteran maintains
that his defective hearing is related to noise exposure in
service, he is a layman who does not have the medical
expertise to make competent conclusions as to medical
causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
To be well-grounded, claims must be supported by evidence,
not just allegations. Tirpak, supra. The veteran says that
he has defective hearing related to service, but he has
failed to submit competent medical evidence to support his
allegations. Absent any competent medical evidence showing a
relationship between service and the recently demonstrated
hearing loss, the Board finds that a well-grounded claim of
service connection has not been presented. Grottveit v.
Brown, 5 Vet.App. 91 (1993); Grivois v. Brown, 6 Vet.App. 136
(1994); Caluza, supra. Moreover, while the requirement that
there be a nexus between a current disability and service may
be satisfied by a presumption that high frequency
neurosensory hearing loss (a disease of the nervous system)
manifested itself to a compensable degree within a year of
service, evidence tending to show that this has been the case
has not been submitted. Caluza, supra. Absent the
presentation of some competent evidence that in some fashion
attributes a current hearing loss under § 3.385 to military
service, the veteran's claim may not be considered well
grounded.
ORDER
Entitlement to service connection for defective hearing is
denied.
C. W. SYMANSKI
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -